Mr. Speaker, I am pleased to join my colleagues today in speaking in opposition to Bill C-6.
As others have said earlier, the bill constitutes an extensive rewriting of the Aeronautics Act. It is a bill that was introduced by the previous government but had not been passed into law. Nevertheless, key pieces of this proposed legislation had been put in place under the direction of the former transport minister. We believe that these changes should be dealt with in Parliament by members elected to consider new legislation.
The issues dealt with in Bill C-6, which would amend the Aeronautics Act, are very broad: a new purpose clause; new safety management systems; immunity from prosecution for airlines that violate safety rules under certain conditions; heightened secrecy and less access to information on the safety performance of airlines; designation of private industry bodies to self-regulate their safety activities; new employee reporting procedures for hazards and risks; revamped enforcement mechanisms; new levels of fines; new administrative penalties; new airport zoning and land use rules; new procedures for investigations; permission for the operation of fractional ownership aircraft in Canada; abuse of exemptions procedure; changes to the procedures for review of ministerial decisions and actions; and a host of technical issues are dealt with in the bill.
We have identified, through our analysis, a number of problems with Bill C-6 in some key areas that I will now review. The first area concerns the safety management systems. This seeks to give authority to the governor in council to establish and implement management systems, better known as safety management systems or SMS. This is the heart of the change to the Aeronautics Act that will affect the safety of the travelling public and of crew members.
A number of airline crew members who live in my riding have contacted me in the past out of concern, for example, about increasing the ratio of crew members to passengers. They are concerned with their own safety and the public welfare, as they are trained to be.
We know that the SMS process is well underway, quarterbacked by Transport Canada's director general of Civil Aviation. Some of these regulations have already been passed by the Canada Gazette. They were then exempted the same day by Transport Canada officials and replaced with a three year implementation plan for safety management systems, even before Parliament had the opportunity to debate, much less approve, this new enabling legislation. They are now near the end of the first year of the SMS implementation.
What is this new system? It is supposed to be a management system that allows air operators to improve their safety levels by building on existing safety regulations. While Transport Canada insists that SMS is not a deregulation of safety, that is precisely what it is in two ways. First, it is a new role for the regulator with increased delegation of previously performed Transport Canada duties to the airlines themselves. We are talking about self-regulation as opposed to government regulation. It is a transfer of the determination of appropriate “risk levels” from Transport Canada to the airlines or from the public interest to a determination in the interests of private shareholders.
Transport Canada embraced SMS as a result of anticipated budget cuts even before the May 2 budget. Transport Canada officials have openly stated that the current safety framework is not sustainable due to a lack of technical personnel in the industry in the future.
Given the anticipated rate of inspector retirements, which is at the rate of about 40% over the next five years, this will mean a shortage of qualified personnel to oversee the current system.
Budget constraints are expected to continue for the foreseeable future in an era of what is called fewer regulatory resources. These resources are the inspectors enforcing the regulations that determine the safety of the travelling public, not to mention the crew members working in the industry.
Internal budget documents indicate flatline resources for Transport Canada aviation for the next two years, with a more than 5% cut beginning in 2008. However, Transport Canada has refused to provide internal documents to one of the unions involved, CUPE.
SMS is Transport Canada's way to cut its coat to fit a quite limited financial cloth. As a result, there will be a shifting relationship between airlines and Transport Canada. An assistant deputy manager for safety and security was quoted in an aviation magazine saying:
There must (be) a willingness on the part of the regulator to step back from involvement in the day-to-day activities of the company in favour of allowing organizations to manage their activities and related hazards and risks themselves.
This was done through SMS regulations, where the determination of the level of safety has been explicitly transferred to the air operators who will decide how to manage the risks, including the level of risk they are willing to accept in their operations and impose on air travellers and their employees. Under SMS, it will be the airlines that decide safety levels for the traveling public.
The head of Air Canada will now be safeguarding the public interest. Air Canada's bottom line will be the factor in setting safety levels for that airline. Transport Canada staff admitted, as late as last December, that such a redefinition of the role of the minister raises legal questions about the government's responsibility and liability for future system failures. It is also a naive and dangerous change in the relationship between Transport Canada and the airline industry.
Maintaining adequate safety costs money and the public counts on government regulations and the enforcement of those regulations to ensure their safety. However, SMS will foster a tendency to cut corners in the name of efficiencies in a very competitive aviation market wracked by high fuel prices. Today wine bottles are being abandoned to lessen aircraft weight and save a few litres of very expensive jet fuel.
What will happen to safety when the need to save money and make profits is paramount? Leaving enlightened business to manage themselves properly will not mean that safety will take care of itself. How will the public interest be protected under SMS? If anything, there will be increased reliance on time-consuming and costly lawsuits to deal with inevitable system failures initiated by the victims of surviving families of these breakdowns. We simply cannot let this happen.
Transport Canada officials have candidly admitted that some U.S. federal aviation administration officials have said that Canadians are giving away the store with SMS.
I would like to say a few words now about the delegation of rules-setting to private bodies. This is found in the bill's clause 12, specifically the new proposed subsections 5.31 through 5.38. SMS is supposed to enhance aviation safety because it builds on a robust set of minimum standards set by Transport Canada in the public interest.
In its various public and private statements, Transport Canada has been evasive on the future of the level of basic regulation it will maintain in the future. However, actions speak louder than words. Transport Canada has already transferred the actual operation of its regulatory regime entirely to the private sector for certain classes of air operators. It has done so even though new proposed subsection 5.31 of clause 12 of this bill has yet to be passed authorizing such a delegation to organizations. This transfer occurred for business aircraft in March 2005. Who is next?
Transport Canada is now openly speaking about doing the same for commercial operators, most recently at the Canadian aviation safety seminar in Halifax last April. The foxes will be running their own hen houses and it is up to us as parliamentarians to represent the public interest, the interest of Canadians and blow the whistle on this. We cannot let this happen.
We know the government has a very narrow view of the rule of government but we cannot play around with the safety of the travelling public.
The concept of management systems is not defined in Bill C-6. Rather, the key definitions of safety management systems and accountable executives and the basic elements of SMS are confined entirely to the already enacted regulations. While safety management systems exist already in Canada in railway security, Nav Canada and in other countries, not all SMS are created equal.
Key deficiencies in the current aviation version of safety management systems include: under intense industry pressure, the personal liability of the accountable industry for the proper functioning of the SMS has not been added to the Aeronautics Act; the definition of SMS contains only a vague purpose, which is “to ensure aviation safety or the safety of the public”, rather than a specific and achievable performance objective, such as, to reduce risks to the lowest level reasonably practicable; an emphasis on managing risks, rather than eliminating, controlling or minimizing them; the absence of clear and measurable requirements for continuous improvement in the SMS itself; the disappearance of a promised regulatory provision to ensure the effective involvement of employees and their unions in the development, implementation and operation of SMS; established minimum elements to be part of SMS's safety policy, including adherence to minimum legal and regulatory requirements; and, poorly defined risk matrices that have more to do with technical engineering standards than human failures of the costs of human injury.
The biggest failing of Transport Canada's SMS is that it has not been empirically validated against the actual track records of similar SMS where they have performed poorly, failed or missed their objectives.
I would like to speak briefly about the encroachment of SMS on part II of the Canada Labour Code, which addresses occupational health and safety for workers in the federal jurisdiction.
As “notwithstanding any other act of Parliament” legislation, part II of the code has exclusive authority to deal with occupational health and safety for these workers.
Flight attendants and pilots were added to the scope of part II in 1986 as an aviation extended jurisdiction shared between Transport Canada and the labour program of what is now HRSDC. Part II of the code provides a series of important rights. It provides the right for working people to know workplace hazards. It has a hierarchy of proactive measures to deal with such hazards, such as, eliminate, control, minimize and self-protect. It gives workers the right to refuse unsafe work and the right to participate, including in joint employee-employer investigations and inspections.
The introduction of SMS has emboldened employers to try to turn the clock back before 1986 for flight attendants. Safety data available by law to joint occupational health and safety committees are now being routinely denied by air operators as part of the new SMS confidentiality mentality.
Employee occupational health and safety representatives are being excluded routinely from legally mandated joint occupational health and safety investigations in favour of management only SMS investigations. Managers are applying risk indices to determine if corrective action should be taken on health and safety issues contrary to the precautionary principle found in sections 122.1 and 122.2 of the Canada Labour Code.
Air operators such as Air Canada and Air Transat are openly disregarding a joint Transport Canada-HRSDC interpretation document on SMS by integrating health and safety committees into their new SMS programs with the resulting denigration of employee rights.
Transport Canada inspectors, who enforce health and safety under a memorandum of understanding with HRSDC, have limited ability to enforce code rights when their senior managers have overwhelmingly embraced SMS. SMS must be carefully circumscribed within the Aeronautics Act, so that it does not subsume, impact or denigrate other existing rights provided under part II of the code.
There are new, very complex but distinct levels of confidential reporting associated with immunity provisions or protection from reprisals in Bill C-6 and promulgated under SMS regulations. There are three levels of such reporting and immunity. At the air operator level, the SMS regulations call for employers to implement a non-punitive safety reporting policy that requires employees to voluntarily report safety hazards and other problems to air operators. The conditions under which protection from discipline is available to employees can be imposed by the air operator or possibly negotiated with the union.
At the level of Transport Canada, proposed new subsection 5.392(1) stipulates that safety information from an air operator or its employees that comes into the minister's possession will be confidential. It can only be provided to the courts if it is de-identified or if the air operator is about to be shut down. This proposed new section adds that this information, including self-reporting contraventions of the law and regulations, cannot be used against the provider of the information to impose any penalties. Such information will also be beyond the reach of the Access to Information Act.
At a national level a new section would allow a person, conceivably employees or air operators, to report safety information and violations of the law and regulations without fear of reprisal subject to specified limitations on immunity in another new section by a yet to be created national safety body. This information will also become a mandatory exclusion from the Access to Information Act and be held in confidence.
The premise of these changes is that air operator employees may be reluctant to report their mistakes if they fear reprisals from their employers or Transport Canada, but these legislative changes go far beyond this, making all safety information now confidential. This new culture of secrecy has already limited the operation of joint occupational health and safety committees under part II of the code.
The minister's April 27 news release describes these amendments as allowing individuals and operators to confidentially report, on a voluntary basis, less safety critical regulatory violations, but clearly, there is a real concern that this will give the operators a get out of jail free card for self-reported violations of the law or regulations to Transport Canada with no enforcement taken on the self-reported regulations.
In summary, my concern is that this bill would mean more secrecy and would be a threat to the safety of the Canadian travelling public. It would provide operators working in the industry less access to information and action about the hazards that they are facing. I do not believe that this is in the best interests of either people who work in the industry or the travelling public. I urge hon. members to oppose this bill.
